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Correction to This Article
A Nov. 28 Outlook article on how 15-year judicial appointments might be better than lifetime tenure incorrectly suggested that a 15-year term is "seven years longer than any president can serve." It's possible, under the 22nd Amendment, for a president to serve as long as 10 years -- up to two years of an unexpired term followed by two elected terms.

To Break the Stalemate, Give Judges Less Than Life

By Norman Ornstein
Sunday, November 28, 2004; Page B03

Could there be a more bitter stalemate in Washington right now than the Senate's standoff over judicial nominations? Democrats maintain that President Bush intends to use these lifetime appointments to create a conservative legacy that will outlast his administration by several decades. Republicans say that the Democrats' use of the filibuster to block Bush's nominees is minority rule gone wild and a finger in the eye of voters, who elected a GOP president and Senate.

As matters now stand, nothing appears likely to break the deadlock. Senate Republicans have one weapon -- what Majority Leader Bill Frist and his colleagues have called the "nuclear option," because it would blow up the current rules requiring a 60-vote "supermajority" to end a filibuster. Essentially, Vice President Cheney would declare, in his role as president of the Senate, that judicial nominations can't be filibustered -- and then Senate Republicans would vote by simple majority to uphold his ruling.


(Alexander Hamilton John Trumbull, Circa 1804 -- Museum Of The )

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The Democrats would certainly challenge this tactic, saying that such rulings are themselves subject to Senate debate and therefore subject to filibuster and the 60-vote hurdle. New York Democratic Sen. Charles Schumer warned, "To implement the nuclear option would make the last Congress look like a bipartisan tea party."

There is a better way to prevent this partisan warfare from going nuclear: Amend the Constitution to eliminate lifetime tenure in favor of single 15-year terms, at least for Supreme Court justices and federal appeals court judges.

Whoa, you say. Lifetime appointments insulate the judicial branch from political influence, don't they? Not anymore. Is there anything more political than the Senate's unceasing battles over these nominations? Meanwhile, the nominees themselves have become politicized by the battles -- Supreme Court Justice Clarence Thomas will always remain bitter over how the Senate treated him during his confirmation hearings. It's been 17 years since Senate Democrats blocked the nomination of Robert Bork to the Supreme Court, and the ideological wars over the judiciary began in earnest. If the Senate can't figure out how to reach a truce in its battles over these all-important jobs, maybe the best solution is to make the jobs not quite so important.

A 15-year term would still provide insulation from political pressure; that tenure is seven years longer than any president can serve. It would allow plenty of time for a judge or justice to make a substantial contribution while diluting the efforts of any president to project his views onto future generations. It has worked admirably well in other jobs that require independence to be effective -- for example, the Comptroller General of the United States.

Lifetime tenure of judges is taken for granted and rarely discussed. That is understandable. It has been with us since the earliest days of the republic, when the framers embedded the concept in Article III, Section 1 of the Constitution. They viewed lifetime appointments not only as a necessary way to insulate judges from the other branches, but also as protection against undue influence from outside interests. They also saw a lifetime guaranteed income as a financial incentive that would attract and retain the most skilled and talented lawyers.

The Federalist Papers provide a window onto their thinking. In Federalist 78, Alexander Hamilton eloquently argues that judges should remain in office as long as they exhibit "good behavior." In 1788, a year before the Constitution was adopted, he wrote: "The standard of good behavior . . . is certainly one of the most valuable of the modern improvements in the practice of government. In a monarchy it is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws."

The logic was impeccable -- at least for the 18th and 19th centuries. Now, though, lifetime tenure has serious drawbacks. It has created a powerful temptation to presidents to pick young ideologues, skewing the balance on the bench and leveraging a president's power for decades thereafter. And lifetime tenure ratchets up the stakes of each appointment, giving opposition parties more incentive to block as many presidential nominees as possible, whatever their ideology, to leave more lifetime slots for a future president of their own party.

Moreover, lifetime tenure in the 21st century is no longer a financial incentive, but a financial drawback. Federal judicial salaries are currently barely more than a newly minted lawyer, just out of school, can earn at a major law firm. A 15-year term would limit the financial disincentive for serving on the courts -- for a younger person, there would still be plenty of time to build the nest egg to provide for a family and retirement; for an older person, it would become the final chapter of a career. Presidents would have a much wider array of talent to choose from if people in their sixties could be seriously considered for top judicial posts; many are now largely discounted because of the alternative lure of choosing younger nominees who can serve much longer.

If these 15-year terms were staggered over time for Supreme Court positions, it would take away the variability that allows some presidents to fill several vacancies in one term, while other occupants of the Oval Office can go two terms without filling any. Presidents could have their say, but the luck of the draw or the actuaries would not be able to let them dominate policy into the next generation. It would also have another side benefit -- removing the motivation for justices to game the system, either by staying in office longer to await a compatible president, or retiring prematurely to ensure a like-minded replacement.

Of course, going to 15-year terms would not eliminate rancor over nominations and, in the short term, neither side would see the change as being to their advantage. The Democrats, now facing a slew of nominations they view as ideologically unacceptable, wouldn't be terribly thrilled at the prospect of even 15 years of conservative influence. Republicans would be reluctant to give up the difference between 15 years and a lifetime.

Moreover, it's hard to overestimate the resistance to changing the Constitution. But pushing for the change may be worth the effort, or at least the debate. The alternative is the nuclear option and its inevitable companion, mutually assured destruction. We have long accepted lifetime judicial appointments as a given. We shouldn't. The shift away from lifetime appointments just might bring the Senate back to a more conventional -- and constructive -- partisan conflict.

Author's e-mail:

nornstein@aei.org

Norman Ornstein is a resident scholar at the American Enterprise Institute.


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